In our democratic system of government, the legislature passes laws, the executive branch enforces them, and the courts interpret them when disputes arise about their meaning. Our system of judicial review means the statutes written by legislators are just one part of what makes up “the law.” The common law — court opinions construing statutes and even the Constitution itself — is foundational, pre-dating the formation of the Republic.
These opinions explain and elucidate the rules that govern all of us. Not only do the three branches of government serve as checks and balances on one another, the public also acts as a check on the government. That is why court opinions are public, why legislatures pass bills in a process open to public observation and comment, and why the executive is subject to freedom of information laws. Public information means public accountability.
The courts, like the legislatures, are public institutions doing the public’s business. Public oversight ensures that judges are fulfilling their duty to be neutral, detached arbiters acting without favor to any party. Thus, with limited exceptions, the courts do their work publicly. In general, as a member of the public, you are free to walk into a courtroom to observe the proceedings, and to obtain the documents filed in the case before the court.
Yet in August 2018, Reuters reported that the U.S. government secretly asked a federal court in Fresno, California, for an order that would force Facebook to break the encryption of its Messenger voice call service so that certain users’ calls could be wiretapped as part of a gang investigation. The court reportedly denied the request and ruled in favor of Facebook.
We know only this much due to press coverage, based on leaked information, because the entire case is under seal. But we know very little else, such as what legal arguments the government made in asserting that companies can be compelled to change their encryption to assist investigators, which statutory provisions it claimed supported that contention, and the court’s rationale for rejecting the government’s position.
Public access to the law is fundamental to our system of government. This not only facilitates oversight, it also allows everyone to know what the law is. As the Supreme Court reaffirmed earlier this week, “‘[e]very citizen is presumed to know the law,’ and ‘it needs no argument to show . . . that all should have free access’ to its contents.” Nonetheless, in February 2019, the Fresno court rejected our attempt to unseal the opinion it had issued in secret.
We appealed, and this week a federal appeals court heard oral arguments via videoconference from the Department of Justice, Duffy Carolan (representing our co-petitioner the Washington Post), and my brilliant colleague Jennifer Granick (who is now at the ACLU). Based on the judges’ questions and comments, I am cautiously optimistic that the appeals court will rule that the district court must issue a public, redacted version of its opinion.
It has been a bedrock tradition since the earliest days of the nation that courts publish their opinions for all to read. The Fresno court’s ruling has implications for everyone who relies on encrypted communications apps to keep their conversations secure, including Facebook Messenger’s 1.3 billion worldwide users. It is also important for the providers of encrypted communications services to know what their legal duties are in assisting law enforcement. With such vital interests at stake, this case is a perfect illustration of why courts’ opinions must be public.
We do not know for sure when the appeals court’s opinion will come out, or how broadly it will construe the public’s right of access to court records. But we can be certain that its opinion, like the oral argument (which was live-streamed and is available here), will be public. That means everyone, not just the government and Facebook, will be able to read the court’s decision on the important legal principles at stake. Whether it sides with us or the government, when the Ninth Circuit makes law in our case, everyone will know what the law is. And that is a win, in and of itself.